Citation Nr: 0508716
Decision Date: 03/23/05 Archive Date: 04/01/05
DOCKET NO. 00-02 011 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for a left knee
disability.
2. Entitlement to service connection for a low back
disability.
3. Entitlement to an initial compensable evaluation for
cervical strain with occipital headaches.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The veteran served on active duty from January 1995 to
December 1998 and was discharged from service under honorable
conditions.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 1999 rating decision by the Buffalo,
New York, Regional Office of the Department of Veterans
Affairs (VA). The veteran has changed his address of
residence during the course of this appeal, and that the
Indianapolis, Indiana, VA Regional Office (RO) is now the
agency of original jurisdiction.
FINDINGS OF FACT
1. A chronic left knee disability did not have its onset
during active duty.
2. A chronic low back disability did not have its onset
during active duty.
3. In July 2003, the Board remanded the case for a VA
medical examination of the veteran's cervical spine
disability.
4. In VA correspondence dated in June 2004 that was sent to
the veteran's last known mailing address, he was notified
that he was scheduled for a VA medical examination in July
2004 to evaluate his cervical spine disability; he failed to
appear for this examination or show good cause as to why he
was unable to appear.
5. In VA correspondence dated in August 2004, the veteran
was informed that he had failed to appear for the examination
scheduled in July 2004 and given 60 days to respond to the
letter and comply with the examination; he failed to reply.
CONCLUSIONS OF LAW
1. A chronic left knee disability was not incurred in or
aggravated by military service. 38 U.S.C.A. §§ 1110, 5103A,
5107 (West 2002); 38 C.F.R. § 3.303 (2004).
2. A chronic low back disability was not incurred in or
aggravated by military service. 38 U.S.C.A. §§ 1110, 5103A,
5107 (West 2002); 38 C.F.R. § 3.303 (2004).
3. An initial compensable evaluation for cervical strain
with occipital headaches is denied. 38 C.F.R. § 3.655
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matters
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2004).
During the course of the appeal, there was some confusion
regarding the veteran's correct mailing address. However,
the RO determined the correct mailing address and provided
the veteran with express notice of the provisions of the VCAA
in correspondence dated in April 2004, which provided the
veteran with an explanation of how VA would assist him in
obtaining necessary information and
evidence. The veteran has been made aware of the information
and evidence necessary to substantiate his claims and has
been provided opportunities to submit such evidence.
However, he has not identified any additional, relevant
evidence that has not otherwise been requested or obtained.
VA has conducted reasonable efforts to assist the veteran in
obtaining evidence necessary to substantiate his claims
during the course of the July 2003 remand during this appeal.
He has also been provided with VA examinations in 1999 that
address the issues on appeal. In this regard, VA has
undertaken a reasonable effort to provide the veteran with
another VA examination in July 2004 to address the etiology
of his claimed left knee and low back disabilities, and to
assess the severity of his service-connected cervical strain
with occipital headaches. However, after having been
notified of the aforementioned scheduled examination in
correspondence sent to his last known mailing address in June
2004, the veteran failed to show for the examination or offer
explanation for his absence. He was advised by VA of the
consequences of failing to appear for a scheduled medical
examination in an August 2004 letter and offered 60 days to
respond, but no reply was received.
In view of the above discussion, the Board concludes that the
veteran has been notified of the evidence and information
necessary to substantiate his claims, and he has been
notified of VA's efforts to assist him. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). As a result of the
development that has been undertaken, there is no reasonable
possibility that further assistance will aid in
substantiating the claims. For these reasons, further
development is not necessary to meet the requirements of
38 U.S.C.A. §§ 5103 and 5103A.
Finally, to the extent that VA has failed to fulfill any duty
to notify and assist the veteran, the Board finds that error
to be harmless. Of course, an error is not harmless when it
"reasonably affect(s) the outcome of the case." ATD Corp.
v.
Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998). In this
case, however, as there is no evidence that any failure on
the part of VA to further comply with the VCAA reasonably
affects the outcome of this case, the Board finds that any
such failure is harmless.
Factual Background and Analysis: Entitlement to service
connection for a left knee and low back disability.
The veteran's service medical records show that on pre-
enlistment examination in March 1993, the veteran's lower
extremities and spine were normal and that he denied having
any knee problems or recurrent back pain in his medical
history questionnaire.
In July 1998, the veteran was treated for complaints of knee
pain of one week's duration. A knee disorder was not
diagnosed and he denied having any precipitating trauma.
On examination in October 1998, in preparation for his
separation from service, the veteran reported in his medical
history that he had left knee pain. He denied having any
recurrent low back pain. Examination of his lower
extremities and spine were clinically normal. He was
discharged from active duty in December 1998.
Post-service VA medical records show that in March 1999, the
veteran received treatment for complaints of low back pain
and left knee pain.
The report of an April 1999 VA examination shows that the
veteran related a history of falling from a truck during
service in 1997 and landing hard on his back against a towed
trailer's hitch assembly. He stated that he did not seek
medical treatment for his injury at the time, but that ever
since this traumatic injury he experienced recurrent low back
pain. X-rays of his lumbosacral spine revealed no evidence
of fracture or bony destructive process, spondylolysis, or
spondylolisthesis. The x-ray films revealed lumbarization of
the S1 vertebra, with congenital narrowing of the S1-S2 disc
space level that was diagnosed as a transitional lumbar
vertebra. His sacroiliac joints were deemed by the examining
radiologist to be unremarkable. The clinical assessment of
the examiner was low back pain.
With regard to the left knee, the April 1999 examination
report shows that the veteran related a history of developing
left knee pain approximately in 1995, while running during
basic training. He stated that he experienced left knee pain
with prolonged walking or sometimes for no discernable reason
at all. X-rays in April 1999 revealed a normal left knee.
The clinical diagnosis was left knee patellofemoral syndrome.
A December 1999 VA treatment report shows that the veteran
complained of left knee pain. X-rays revealed very slight
narrowing of the medial compartment of the left knee and the
treating physician suspected that this represented an early
medial meniscal injury, versus chondromalacia patella.
A February 2000 VA medical report shows that the veteran was
treated for complaints of left knee pain and was diagnosed
with possible chondromalacia patella.
At the April 2000 hearing at the Cleveland, Ohio, VA Regional
Office, the veteran testified that he injured his lower back
in service after he fell across a trailer hitch, and that he
had experienced left knee pain ever since entering active
duty. He also indicated that he received treatment for his
left knee from a German medical caregivers while stationed in
Germany, but that these records were unobtainable.
Service connection involves many factors, but basically means
that the facts, shown by the evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service, or if pre-existing such
service, was aggravated
therein. This may be accomplished by affirmatively showing
inception or aggravation during service or through the
application of statutory presumptions. 38 C.F.R. § 3.303(a).
Moreover, in the case of arthritis, service connection may be
granted if such disease is manifested in service, or
manifested to a compensable degree within one year following
separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2004).
With chronic disability or disease shown as such in service,
or within the presumptive period under 38 C.F.R. § 3.307
(2004), so as to permit a finding of service connection,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. This rule does
not mean that any manifestation of joint pain in service will
permit service connection for an orthopedic disability, first
shown as a clear-cut clinical entity, at some later date.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established, there
is no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service, or in the presumptive period,
is not, in fact, shown to be chronic, or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b). Service connection may be
granted for any disease diagnosed after discharge from active
duty when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
With respect to the issue for service connection for a left
knee disability, the Board finds that the objective medical
evidence does not support the veteran's claim. Although a
complaint of knee pain is noted in service in July 1998 and
on separation examination in October 1998, the examining
physicians at the time found
his lower extremities to be normal and presented no diagnosis
of any chronic left knee disability. Several months after
the veteran's discharge, in April 1999, X-rays of his left
knee showed normal findings and the veteran's left knee pain
was attributed to patellofemoral syndrome. It was not until
a year afterwards, in December 1999, that slight narrowing of
the medial compartment of the left knee was observed on
radiographic study that was attributed to either an early
medial meniscal injury or chondromalacia patella. However,
none of these diagnoses were noted during active duty and the
post-service physicians did not link them to the veteran's
period of military service. Therefore, the Board finds that
the medical evidence does not support the veteran's claim for
VA compensation for a left knee disability and service
connection must be denied.
With respect to the issue of service connection for a low
back disability, the Board also finds that the weight of the
evidence is against his claim. His service medical records
show no treatment for any low back complaints, he
consistently denied having any recurrent back pain on his
medical history questionnaires, and his spine was normal on
all medical examinations conducted during service. The VA
examination of April 1999 noted the presence of a
transitional lumbar vertebra. However, this is a congenital
condition that is specifically excluded as a disease or
injury within the meaning of applicable legislation providing
for compensation benefits and therefore VA compensation may
not be awarded for it. See 38 C.F.R. § 3.303(c) (2004);
Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board
furthermore notes that the assessment presented to account
for the veteran's complaints was low back pain. Pain alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitute a disability
for which service connection may be granted. See Sanchez-
Benitez v. West, 13 Vet. App. 282 (1999).
To the extent that the veteran asserts on his own authority
and personal knowledge of his condition that he has a chronic
left knee and low back disability that are the
result of his military service, as he is a layperson who has
had no formal medical training, he is not competent to offer
probative opinion and commentary regarding the diagnosis of
his medical conditions and their etiology. See Layno v.
Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
The Board has considered the applicability of the benefit-of-
the-doubt doctrine to the above issues. However, the
evidence in this case is not approximately balanced with
respect to the merits of either claim and the benefit-of-the-
doubt doctrine thus does not apply. See 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102 (West 2002); Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Factual Background and Analysis: Entitlement To An Initial
Compensable Evaluation For Cervical Strain With Occipital
Headaches.
The veteran was granted service connection and a
noncompensable evaluation for cervical strain with occipital
headaches, effective from December 19, 1998, by a rating
decision dated in April 1999. He appealed the initial
evaluation assigned and contended that the severity of his
disability warranted a compensable rating. In July 2003, the
Board remanded the claim to the RO for further evidentiary
development, including to schedule the veteran for an
orthopedic examination of his cervical spine to determine the
level of impairment associated with his service-connected
disability.
Pursuant to the Board's remand, the RO issued correspondence
dated in June 2004 to the veteran's last known mailing
address, in which he was notified that he was scheduled for a
VA medical examination in July 2004 to evaluate his cervical
spine disability. The claims file indicates, however, that
he failed to appear for this examination. The RO then
informed the veteran in an August 2004 letter that his
failure to appear for the July 2004 examination without
showing good cause for his absence could result in the denial
of his claim. He was given the opportunity to respond to the
letter within 60 days and comply with the examination. As of
October 2004, the veteran failed to reply.
Pursuant to 38 C.F.R. § 3.655, when a claimant fails to
report for an examination scheduled in conjunction with an
original compensation claim without showing good cause, the
claim shall be rated based on the evidence of record. When,
as is the present case, the claimant fails to report for
examination scheduled in conjunction with any other original
claim, a reopened claim for a benefit which was previously
disallowed, or a claim for an increase, without good cause,
the claim shall be denied. Examples of good cause include,
but are not limited to, the illness or hospitalization of the
claimant, death of an immediate family member, etc. The
Board finds that VA has made several attempts in good faith
to provide a VA examination for the veteran in order to
properly adjudicate his claim, but that the veteran has
consistently failed to cooperate with VA in this regard.
Therefore, pursuant to 38 C.F.R. § 3.655, the Board must
summarily deny his appeal for a compensable initial rating
for his award of service connection for cervical strain with
occipital headaches.
ORDER
Service connection for a left knee disability is denied.
Service connection for a low back disability is denied.
A compensable evaluation for cervical strain with occipital
headaches is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs